At some point, you may not be able to make your own medical decisions. Who speaks for you then, and how well they know what you would have wanted, depends entirely on what you have put in writing now. Without a healthcare proxy, the decision falls to whoever is present, or to a court. With one, it goes to the person you chose.
Healthcare proxies and advance directives fill this gap. They designate who will make medical decisions on your behalf, and in some cases they record your own wishes about specific treatments, so that healthcare providers and family members know what you would have wanted.
Three Key Documents
Healthcare Proxy
A legal document that designates a person, your healthcare agent, to make medical decisions on your behalf if you become unable to make them yourself. Governed by Massachusetts General Laws Chapter 201D. Requires two adult witnesses; no notarization required.
Living Will / MOLST
A living will records your wishes about specific medical treatments, particularly life-sustaining measures. In Massachusetts, the MOLST (Medical Orders for Life-Sustaining Treatment) form is a physician-signed medical order that translates those wishes into actionable instructions for emergency responders and care facilities.
HIPAA Authorization
Authorizes named individuals to receive your protected health information from doctors, hospitals, and insurers. Without this document, even a spouse may be denied access to your medical records in some circumstances. Typically prepared alongside the healthcare proxy.
The Healthcare Proxy in Detail
Under Massachusetts law, a healthcare proxy takes effect when your attending physician determines that you lack the capacity to make or communicate healthcare decisions. Until that point, you retain full decision-making authority. The proxy does not surrender your autonomy, it simply designates a backup decision-maker for circumstances where you cannot act for yourself.
Your healthcare agent has broad authority to make medical decisions on your behalf, including decisions about life-sustaining treatment. Massachusetts law gives agents the authority to consent to or refuse any medical procedure, treatment, or intervention, including the withdrawal of life support, unless the proxy document itself restricts those powers.
Who should serve as your healthcare agent? The agent should be someone who:
- Knows your values and wishes, not just your medical history, but your broader views on quality of life
- Can make difficult decisions under pressure, potentially against the wishes of other family members
- Is available and reachable, ideally nearby, though remote agents can work if they are reliably accessible
- Is not your healthcare provider, Massachusetts law prohibits your treating physician from serving as your agent
Execution Requirements in Massachusetts
A Massachusetts healthcare proxy must be signed by the principal (the person creating it) and witnessed by two adults. Under M.G.L. c. 201D §2, the witnesses cannot be the designated healthcare agent or any alternate agent named in the document. While the statute does not explicitly bar a spouse, heir, or healthcare provider from serving as a witness, it is strongly advisable to avoid using any of these individuals so that the document remains entirely unassailable if its validity is ever challenged. No notarization is required, which makes the document straightforward to execute correctly when the right witnesses are chosen.
The document should be distributed to your healthcare agent, your primary care physician, any specialists treating chronic conditions, and any hospital where you might receive care. Keeping a copy in your wallet or on your phone is also advisable.
The MOLST Form
The MOLST (Medical Orders for Life-Sustaining Treatment) is different in character from a healthcare proxy. While a proxy designates a decision-maker, a MOLST is itself a set of medical orders, signed by a physician, that translates a patient's wishes about resuscitation, artificial nutrition, hospitalization, and other interventions into actionable instructions.
MOLST forms are most commonly completed by patients with serious illness or advanced age, in coordination with their physicians. Emergency medical personnel are required to honor a MOLST. This distinguishes it from a living will or letter of instruction, which are expressions of preference but not legally binding medical orders.
Adult children and HIPAA. Many parents assume that their adult children can automatically access their medical information in an emergency. Under HIPAA, they cannot, not without written authorization. A healthcare proxy authorizes medical decision-making, but a separate HIPAA authorization is needed for full information access. Both should be in your estate planning documents.
Common Mistakes
Naming only one agent with no successor. If your primary agent is unavailable, incapacitated, or unwilling to serve, healthcare providers may have no one to consult. Name at least one successor agent.
Not telling your agent where the document is. A healthcare proxy that no one can locate in an emergency is useless. Make sure your agent has a copy.
Not revisiting the document after major life changes. Divorce, estrangement, death of the named agent, and changes in your own values or medical situation are all reasons to update your healthcare proxy. It is not a one-time document.
Assuming a spouse has automatic authority. In Massachusetts, spouses do not automatically have the legal right to make medical decisions for each other. A healthcare proxy is necessary to formalize that authority.
These Documents Are Not Just for the Elderly
Healthcare proxies and advance directives are often postponed because they feel like preparation for death. They are not, they are preparation for incapacity, which can affect anyone at any age. Adults of all ages benefit from having these documents in place.
Contact Brigantine Law to prepare your healthcare proxy and advance directives as part of a complete estate plan.
These documents are quick to prepare and impossible to create after the fact. If you wait until you need them, it is already too late.